"of a half per cent. additional premium, that she may proceed "from New-Orleans to the Havanna and thence to New-York "without prejudice to this insurance." It having been however ascertained that the port of the Havanna was shut against American vessels before the Alert had left New Orleans, she did not proceed thither as was intended, but having unladen the cargo she had brought from La Vera Cruz (being the same she had carried from New-York) she took on board a cargo of cotton of the value of about $9,000, with which she proceeded directly to New-York where she arrived in safety. It appeared that the value of the cargo of cotton was fully covered by prior policies on the homeward risk, if they attached at all.

Upon these facts it was contended by Meredith and Tilghman for the plaintiff, that by the express terms of the contract, the risk on the outward policies was to continue until the arrival of the Alert at La Vera Cruz, and the goods should be safely landed: that if they ceased on the arrival at La Vera Cruz, (the entry of the vessel and the landing of the cargo being prevented by an interdiction of commerce) the risk was thrown on the plaintiff: that to say the homeward risk attached to the cargo carried from New York to La Vera Cruz would be alike contrary to the express terms of the contract, and to the meaning and intention of the parties, neither of whom could ever have contemplated the return of the cargo shipped at New-York: that it was implied in every contract of insurance, and indispensable to its being obligatory on the insurer, that the ship at the commencement of the risk insured shall be fitted in all respects for the intended voyage, and that the goods shall be in good order and properly laden: that in this case, by occurrences, not known to the insured and therefore not communicated to the insurer at the date of the policy, neither vessel nor cargo were in such situation as by the implied contract would be necessary to bind the underwriter, of whom no indemnity could have been recovered, had a loss happened. With respect to the cargo shipped at New-Orleans it was contended, that if the homeward policies could be considered as attaching to it,

the prior policies of that description were sufficient to cover it; and that the permission to go to the Havanna, could have no effect, because evidently applied for and granted under a mistaken opinion on both sides, that the homeward policies had attached, and the premium been earned: that this mistake would have protected the underwriter from liability for a loss, and ought not to defeat the plaintiff's claim to a return of premium.

On the other hand it was contended by Hopkinson and Ingersoll for the defendants, that the outward risk ceased and the homeward risk began at the moment the Alert cast anchor at La Vera Cruz, the homeward policies being "at and from" La Vera Cruz: that no chasm was contemplated by the parties who evidently intended that the homeward policies should attach the moment the outward policies ceased: that at all events the application for permission to go to the Havanna, made by the plaintiff after a knowledge of all the previous circumstances of the voyage, and granted by the defendant, was an admission on both sides that the risk should be considered as having attached, and conclusive upon the parties: that it would have subjected the underwriter to a loss had one taken place, and therefore he had earned the premium. Some reliance too seemed to be placed on the plaintiff's not having communicated to the insured any information of what had previously occurred at the time of applying for this permission, which was said to be such a fraud in law, as would prevent a recovery of the premium even in case the risk had not been

run.

Judge WASHINGTON charged the jury in favour of the plaintiff, and we shall give a summary of his charge, in the same brief and necessarily imperfect manner in which we have stated the arguments of the counsel.

He observed, that he was much mistaken, if it ought not to give pleasure to underwriters for the Court to say that the principles of law on which the defendants' counsel in this instance relied, were unfounded. There are two things necessary to form a contract: the consent of the parties, and a sub

ject on which the contract is to take effect. If the risk contem. plated in a policy, never commence, there is no contract; and the premium which is the price of the risk must be returned. By this policy the adventure was to begin on goods laden at La Vera Cruz, whereas no goods were laden at La Vera Cruz, but the Alert returned with the same cargo which she had carried from New-York. It never could have been in the contemplation of these parties, that the risk should attach on this. cargo, no more than if they had insured a cargo of rum, and a cargo of cocoa had been laden, the policy could be considered as covering the latter. That as to the memorandum giving permission to touch at the Havanna, it was merely additional to the former contract, but not a new insurance, in making which, both parties evidently acted under a mistake in point of law, supposing that the risk had commenced at La Vera Cruz, whereas in truth it had not. That without doubt, the parties might have agreed that the risk should be considered as having commenced, and bound themselves by such agreement, as in a case of deviation known to both the parties, the underwriter may waive the effect of the deviation, and bind himself for a subsequent loss; but that to make such an agreement in this case, a full knowledge of all the previous circumstances and their effect on the rights of the parties was necessary. The Judge observed, that it was unnecessary to express an opinion on the point of seaworthiness, the case being with the plaintiff on the other ground, and the jury found a verdict accordingly.

In Chancery.

EASTER TERM, 1770.

William Daw Tothill, Esq. v. the Right Honourable William Pitt, Earl of Chatham.

WHERE the words of a will would give an express estate tail in a freehold, the same words applied to personal estate will give the whole interest; and as, by a devise of rents and profits, lands will pass, so a devise of the dividends of bank stock is of equal import with a devise of the stock itself.

The Editor is indebted to the reporter of the case of Perryn v. Blake, for the following important argument. This report will be found to be much more full than any other. The case is also reported in Brown's Parliamentary Cases, and commented upon in Fearne. Daw, who afterwards assumed the name of Tothill, filed his bill in the Court of Chancery, in Easter term 1765, by which he prayed that Pitt might be decreed to transfer to him, &c. The answer was filed in June 1765, in which Pitt insisted on his absolute right and title to the property and things claimed in the bill. The case was heard at the Rolls, in June 1766, before sir Thomas Sewell, the master, who decreed that the bill should be dismissed, without costs. Daw acquiesced in this decree, at the time, by letter to Pitt; but three years afterwards he prayed an appeal, and the cause was again heard before the Lords Commissioners for the custody of the great seal, in June 1770, when it was decreed that the order of dismission of June 1766, should be reversed. From this latter decree the Earl appealed. After hearing counsel, viz. Thurlow and Mattocks for the Earl, and Wedderburne and Dunning for the respondent, the following question was put to the Judges:

"Whether, in the event which has happened, the devise to the respondent, W. D. T., of the bank stock, &c. specifically be queathed, is good and effectual or void?" and the Lord Chief Baron of the Court of Exchequer, having delivered the unanimous opiG

nion of the Judges, that the devise was void, it was thereupon ORDERED and ADJUDGED that the decree complained of should be reversed. MS. Jour. sub anno 1770-1, p. 851. Vid. 7 Bro. Par. Cases, 460.

THIS

HIS cause came before the Court of Chancery, upon an appeal from the decision of the Master of the Rolls in favour of the defendant.

The case was this. One Tothill devises to Sir William Pynsent, "all the dividends of my bank stock in the three per cent. consols, and the produce of my exchequer annuities, for his life;" and after his decease he devises, in the same manner, to Miss Leonora Ann Pynsent, for life. After many other particular bequests, he gives all the residue of his estate, both real and personal, to Miss Pynsent, and the heirs male of her body, lawfully begotten, forever; and for want of such issue, to William Daw. Then the testator directs, that his jewels, plate, &c. should be locked up till it were known who should be his heir. These two points arise:

1st. Whether the words heirs male of her body were words of limitation or purchase?

2d. If they were words of purchase, whether the devise be ing after a general failure of issue of Miss Pynsent, were not too remote to carry the interest to Mr. Daw?

The defendant claims under the devise of Sir William Pynsent, who derived his title from his sister, Miss Leonora Ann Pynsent, who died in his lifetime, without ever having had issue.

Upon the first argument, it was insisted for the plaintiff, that it was the plain intention of the testator to distinguish between the use, and the thing itself; because where he devises the real estate he does it directly; but where he mentions stock, he cautiously confines the devise to the dividends only, which distinction was taken and admitted in the case of Fonnereau v. Fonnereau, MS. [3 Atk. 315.] determined by Lord Hardwicke, and in Exhill v. Read, determined in 1751. It was also argued, that the devise to Miss Pynsent was in the nature of a